The Formal Warning
The most common disciplinary measure in employment law is undoubtedly the formal warning. But what does that actually mean? And what conditions must it meet? An overview.
Disciplinary measures
In addition to the formal warning, there are only a limited number of other disciplinary measures, each with its own drawbacks:
A fine. This is strictly regulated for employment contracts under Article 7:650 of the Dutch Civil Code: the violation and the fine must be agreed upon in writing, and there are limitations on the maximum amount.
A suspension. The Dutch Supreme Court has ruled that salary must be continued during a suspension. Depending on the employee’s perspective, a suspension can therefore feel like a paid vacation.
Dismissal (with or without immediate effect). In that case, the employment ends altogether, so it’s not really a ‘disciplinary measure’ in the sense of encouraging improvement.
Demotion. The conditions for this are comparable to those for dismissal.
Personnel file
A formal warning is often called so because it is added to the personnel file. That distinguishes it from more casual warnings, whether verbal or part of day-to-day task management. Those are, of course, still warnings and may also carry significant weight.
Purpose of the formal warning
The aim of the formal warning is to identify undesirable behavior and to be able to impose a more severe sanction—such as dismissal—if the behavior is repeated. Case law clearly shows that employers are expected to first warn that certain behavior may lead to dismissal.
Conditions
A proper formal warning must meet the following conditions:
The undesirable behavior is described, and preferably the desired behavior is also mentioned. For example: “you arrived late on such and such dates; we expect you to be present by 8:30 a.m. from now on.”
It concerns behavior the employee can actually control. That may seem obvious, but force majeure can also arise from illness or equivalent situations, such as addiction.
The warning reaches the employee. This means it must be signed for receipt or sent by registered mail to the home address. A regular email does not count as sufficient proof.
The warning must state what the employee is being warned about (and what the consequences will be…). This is often omitted, but without it, it’s not a real warning. There must be something like: “if this happens again, we will proceed to dismissal, possibly even summary dismissal.”
A warning works both ways. The employer must monitor compliance with the warning and carry out the announced sanction if the behavior persists. Otherwise, the employee might assume the warning wasn't serious.
The same applies to consistent enforcement of the rule. If other employees get away with the same behavior, it’s unfair for one person to be singled out and warned.